[Ses.  1865-  66. 


Document  No.  9.] 


Ordered  to  be  Printed . 

9 

¥m.  E.  Pell,  Printer  to  the  State. 

\ 

.  I  V 

.>;  v\  V  ^  *•>  • 

REPOM  OF  .COMMITTEE, 

. v-  %\  .  %  .  \  \ 

v 


Raleigh,  January  22nd ,  1866. 

To  the  Speaker  of  the  House  of  Commons 

of  the  General  Assembly  of  North- Carolina : 

Sir  : — The  Committee  appointed  by  the  provisional 
Governor  in  pursuance  of  a  resolution  of  the  recent  Con¬ 
vention  “to  prepare  and  report  to  the  Legislature  a  system* 
of  Jaws  upon  the  subject  of  freed  men,  &c,;”  herewith  pre¬ 
sent  their  report,  and  request  that  through  you,  it  may  be 
laid  before  the  General  Assembly. 

Respectfully, 

B.  F.  MOORE,  ) 

W.  8.  MASON,  V  Committee . 

R.  S.  DONNELL. } 


To  the  Honorable ,  the  General  Assembly 

of  the  State  of  North-  Carolina  r 

/ 

The  undersigned,  a  Committee  appointed  by  the  late" 
provisional  Governor,  in  pursuance  ot  a  resolution  passed 
the  recent  session  of  the  Convention  directing  that  a 


2 


Documemt  Iso.  9. 


[Sessioa 


committee  of  three  persons  be  appointed  uto  prepare  and 
report  to  the  Legislature  at  its  next  session,  a  system  of 
laws  upon  the  subject  of  freedmen,  and  to  designate  such 
laws,  and  parts  of  laws,  now  in  force,  as  should  be  repealed 
in  order  to  conform  the  statutes  of  the  State  to  1  lie  ordinance 
of  the  Convention  abolishing  the  institution  of  slavery," 
have  considered  the  matters  intrusted  to  them;  and  here¬ 
with  submit,  as  their  report,  u  A  bill  concerning  ILegroes, 
Indians  and  persons  of  color,  or  of  mixed  blood  and  also 
several  other  bids  differing,  somewhat  in  'character,  from 
that  one.  ,  y 

The  Committee,  in  presenting  theif  Report,  deem'  it 
proper  that  they  should  explain  the  course  they  have  pur¬ 
sued  ;  and  to  some  extent,  the  reasons  by  which  they  have 
been  governe 

Prior  to  the  emancipation  of  slaves  there  had  existed,  in 
Ihe  State,  three  classes  of  population,  besides  Indians, 
to- wit :  the  whites,  the  slaves,  arid  the  free  negroes;  and 
for  many  purposes,  there  existed  g  special  legislation  for 
each  class.  Upon  the  emancipation  of  the  slaves,  the  laws 
specially  respecting  them,  ceased  to  have  any  force;  and 
that  class  fell  under  the  laws  respecting  free  negroes:  the 
political  and  civil  condition  of  all  the  colored  population 
became  that  which  had  already  been  established  for  the 
free  negro.  It  became  the  duty,  therefore,  of  the  Commit¬ 
tee  to  look  through  tfte  entire  body  of  the  laws  of  the  State, 
for  the  purpose  of  ascertaining  what  part  of  them  governed 
the  free  negro,  as  distinguished  from  the  white  man.  In 
performing  this  duty  3  our  Committee  have  deemed  it  the 
more  advisable  course,  (as  this  species  of  special  legisla¬ 
tion  was  scattered  throughout  the  civil  and  criminal  laws,) 
to  advise  the  repeal  of  all  laws  that  specially  affected  the 
colored  race,  and  re-enact  such  as,  in  the;r  opinion,  ought 
to  exist;  and  also  to  recommend  other  and  original  legis¬ 
lation,  when  it  was  deemed  expedient.  Believing  that  a 


Document  Ro.  ‘3. 


186-5- 66.] 

brief  synopsis  of  the  several  sections  of  the  first  named  bill, 
and  also,  of  the  other  bills,  would  not  be  unacceptable,  they 
proceed  to  furnish  it : 

The  first  section  of  the  bill  “  concerning  negroes,”  &c.,  de¬ 
fines  who  sliaM  be  deemed  a  negro  or  colored  person,  or  per¬ 
son  of  mixed  blood,  within  the  generations  designated. 

The  second  declares  that  in  all  statutes  and  judicial  pro¬ 
ceedings,  such  a  person  shall  be  properly  described  by  the 
term  “  person  of  color.” 

The  third  declares  persons  of  color  to  be  citizens  of  the 
State. 

Ihe  fourth  confers  on  them  all  the  privileges  of  white 
persons  in  conducting  their  suits,  and  in  the  mode  of  trial 
by  jury. 

The  fifth  places  the  colored  apprentice  on  the  same  foot¬ 
ing  with  a  white  one  ;  and  leaves  the  law  declaring  in  what 
cases  they  should  be  bound,  as  it  now  exists  in  the  Revised 
Code. 

By  the  sixth ,  certain  marriages,  deemed  to  be  not  void, 
but  voidable,  though  celebrated  in  due  form,  between  slaves 
or  between  slaves  and  free  negroes,  are  declared  valid. 

By  the  seventh ,  certain  past  marriages  between  them,  ex¬ 
isting  at  certain  fixed  periods,  by  mere  consent  and  without 
due  celebration,  are  validated  ;  and  provision  made  for 
perpetuating  the  evidence  thereof  by  being  recorded. 

By  the  eighth ,  inducements  are  held  out  to  such  as  'are 
thus  married  under  section  7,  to  have  their  marriages  re- 
corded. 

It  has  been  held,  that  under  our  laws,  the  marriages  of 

7  O 

slaves  by  their  own  mere  consent,  and  simply  consented  to 
by  their  masters,  are  void;  and,  as  the  Legisla  ure  is  for¬ 
bidden  to  legitimate  persons  born  in  bastardy,  the  provision 
for  such  legitimation,  which  was  contained  in  an  ordinance 
offered  before,  hut  rejected  by  the  Convention,  (because  of 
■the  adoption  of  the  resolution  under  which  the  Committee 


4 


Document  No.  9. 


[Session:' 


are  now  reporting)  must  be  again  submitted  to  that  body9 
or  the  freedmen  now  living  will  all  be  bastards,  and  inca- 
pable  of  inheriting  from  their  fathers  any  estate  which  he 
may  chance  to  die  possessed  of. 

It  is  believed  that  a  marriage  merely  voidable  may  be 
validated  1  y  the  General  Assembly  ;  and  that  when  thus 
confirmed,  all  the  incidents  of  ratification  follow :  one  of 
which  is  the  legitimation  of  the  issue  previously  born; 
But,  it  is  more  than  doubted  whether  such  result  follows 
the  enactment  of  a  marriage  under  section  T. 

By  the  ninth  section ,  contracts  between  persons  of.  color, 
and  between  them  and  whites,  for  live  stock,  aTe  required 
to  be  in  writing.  The  numerous  tlief.s  of  such  species  of 
property,  in  which  the  whites  and  blacks  associate  to¬ 
gether,  require  this  provision  ;  as  thereby  the  thief  will  be 
the  more  certainly  detected.  The  section  also  embraces 
other  contracts  of  a  certain  vaGe.  And,  one  of  its  main 
objects  is  to  protect  the  colored  person  from  imposition  by 
cunning,  and  the  white  man  from  the  effects  of  corrupt 
evidence. 

The  tenth  section  makes  void  all  marriages  between  whites 
and  persons  of  color. 

Section  eleven  allows  persons  of  color  to  bear  witness 
where  their  rights  of  person  or  property  are  concerned.  In 
respect  of  this  action  the  Committee  will  comment  more 
at  large  hereafter. 

Sections  twelve  and  thirteen  require  no  comment. 

By  section  fourteen  the  criminal  code  affecting  white  per¬ 
sons,  is  extended  to  colored  persons,  in  all  things,  unless 
otherwise  expressly  declared  in  the  bill  reported.  The 
only  exception  in  the  bill,  or  in  any  law,  which  will  exist 
after  repealing  such  as  are  recommended  to  be  repealed, 
will  be  found  in  section  13  of  the  bill  reported,  which  pun¬ 
ishes  with  death  a  person  of  color  who  may  assault  a  whit  On 
female  with,  intent  to  ravish  her,. 


1865-’66.] 


Document  Ho.  9. 


5 


The  Committee  observe  that  in  some  of  the  late  share¬ 
holding  States,  much  legislation  is  employed  to  confer  on 
persons  of  color  the  civil  rights  which  belong  to  white  men. 
In  this  State  very  little  is  necessary  ;  indeed,  none  beyond 
a  repeal  of  the  laws,  which,  from  time  to  time,  have  been 
introduced,  making  distinctions  between  whites  and  col¬ 
ored  persons.  And,  it  may  be  observed,  that  some  of  the 
provisions  of  this  bill  which  seem  to  confer  rights  and 
privileges,  were  strictly  unnecessary ;  because  persons  of 
color  were  entitled  to  them  without  any  new  enactment. 
But  it  was  deemed  better,  at  this  time,  to  solemnly  declare 
them  in  a  hi  11* drawn  to  define  their  civil  status. 

Many  year^&ioce  it  was  solemnly  decided  by  the  highest 
Court  ot  the  ^tate,  and  indeed,  it  has  been  so  regarded, 
that  the  terin^^'eemen,”  (than  which  rone  used  in  the 
declaration  of^^hts  and  the  Constitution  of  the  State,  to 
describe  a  citizen,  is  of  higher  dignity,)  included  in  its 
fullest  extentjj*free  negro,  whether  free  in  1776,  when  the 
Constitution  wa^ftamed,  or  become  so  since  by  emancipa¬ 
tion.  He  was,  at  the  beginning  of  the  late  unhappy  con¬ 
flict  of  arms,  and  is  now,  included  in  the  term  freeman,” 
•as  used  in  that  instrument. 

This  class  of  our  population  have  never  been  debarred 
from  owning  any  species  of  property,  except  by  one  enact¬ 
ment,  that  of  1861,  which  forbade  them  thereafter  to  own 
slaves.  They  have  ever  been  protected  from  trial  for  crime, 
except  through  presentment  by  a  grand  jury,  and  trial  by 
a  petit  jury,  with  all  the  rights  of  challenge  accorded  to 
white  persons.  They  have  ever  been  allowed  trial  in  the 
same  tribunals  where,  for  like  offences,  the  white  man  was 
prosecuted.  The  same  common  law  which  yet  prevails  so 
extensively  in  this  State,  and  regulates,  almost  entirely, 
the  duties  of  husband  and  wife,  of  parent  and  child,  or 
guardian  and  ward,  of  master  and  servant,  and  of  master 
and  apprentice,  exists  alike  for  both  classes.  The  same 


[Session 


$  Document,  No.  9.. 

power  of  making  contracts,  and  the  same  remedies  for  en¬ 
forcing  them  in  courts  open  alike  to  both,  are  equally  the 
rights  of  the  one  race  end  the  other,  without  distinction. 

In  a  word,  the  common  law  is  the  law  of  the  State  in  all 
matters  where  it  has  not  been  superseded  by  statute  ;  where 
it  exists,  colored  and  white  persons  are  equally  protected 
under  its  shield,  and  exposed  toils  punishments;  andpvhere 
it  is  changed  by  statute,  the  change  operates  cm  all. 

By  sections  1’5  and  16,  wardens  of  the  poor,  for  persons 
of  color,  may  he  appointed.  This  is  left  to  the  discretion 
of  the  appointing  court,  only  because,  in**  some  countie* 
of  the  State,  persons  of  color  are  too  few.  m  number  to  re¬ 
quire  an  additional  Court  of  Wardens. 

The  remainder  of  the  sections  of  thq  bill  are  appropria¬ 
ted  to  the  repeal  of  “  such  laws  and  paj^khof  laws  now  in 
force,  as,  in  the  opinion  of  the  Committed  should  be  re¬ 
pealed  in  order  to  conform  the  statutes  of  the  State  to  the 
ordinances  of  the  Convention  abolishing The  institution  of 
slavery,”  and  the  new  condition  of  thftms  arising  out  of 
the  same. 

Secondly,  The  Committee  have  deemed  it  their  duty,  in 
view  of  the  very  great  changes  which,  have  so  suddenly 
taken  place,  to  recommend  the  passage  of  certain  laws 
equally  applicable  to  both  populations.  It  is  conceded 
that  the  industry  of  the  negro  race  has  become  greatly  re¬ 
laxed  and  demoralized,  the  natural  consequence  of  which, 
is  an  unsettled  and  roving  disposition,  a.  desire  to  avoid 
steady  work,  and  a  disposition  to  pick  up  a  precarious  ex¬ 
istence  by  pretended  hunting  of  wild  game,  though  im 
most  localities,  it  is  too  scarce  to  be  worth  the  pursuit,. 

It  is  also  vain  for  us  to  attempt  to  disguise  the  fact  that 
the  industry  of  the  white  man  too,  is  greatly  unnerved  and 
demoralized,  and  like  evil  consequences  are  ready  to  follow* 
Indeed,  they  already  exist.  We  conceive  it  to  be  among 
the  first. of  legislative  duties  to  check  this  demoralization,- 


1865-’66.] 


Document,  No.  9. 


T 


and  direct  the  energies  of  the  entire  population  in  appro” 
priate  channels  of  honest  labor. 

Among  the  most  efficient  means  of  accomplishing  this 
object,  they  deem  the  protection  of  every  man’s  property 
against  unauthorized  intrusions,  trespasses  and  thefts'  of 
the  idle  and  vicious. 

In  our  present  demoralized  condition  there  is  no  suedes 
of  live  stock  which  escapes  the  roving  robler  •  and  every 
man  is  plundered,  when  the  market  is  convenient,  of  what¬ 
ever  may  be  found  on  his  lands,  growing  or  severed,  that 
is  valuable  for  sale. 

Willui  trespasses  on  lands  have  long  be  eft  &  grievance 
greatly  complained  ot.  The  common  law  did  not  allow 
criminal  prosecutions  for  this  species  of  wrong  ;  blit  the 
General  Assembly  have,  from  time  to  time,  in  many  in  * 
stances,  departed  from  this  rule  in  order  to  afford  protec¬ 
tion  against  the  lawless  idler  and  insolvent  trespasser.  In 
proportion  as  circumstances  may  increase  the  frequency  of 
such  wrongs,  it  will  become  the  legislative  power  to  fol¬ 
low  them  with  appropriate  remedies. 

The  Committee,  therefore,  report  and  recommend  the 
passage  of  the  following  bills; 

1.  “  A  bill  to  punish  persons  pursuing  horses  and  other 
livestock  with  intent  to  steal  them.” 

2.  “A  bill  to  prevent  wilful  trespasses  on  Iand&pnd  steal¬ 
ing  any  kind  of  properly  therefrom.’’ 

3.  A  bill  to  punish  vagrancy/’ 

In  regard  to  this  bill,  the  Committee  have  deemed  it  ad¬ 
visable  to  recommend  the  repeal  of  the  two  provisions 
upon  the  same  subject,  and  the  passage  of  this  bill  in  lieu 
of  both  said  provisions. 

These  provisions  are  to  be  found  in  the  Devised  Code, 
chap.  31,  sec.  48;  chap.  107,  sec.  60;  the  former  was  in¬ 
tended  for  white  vagrants,  and  the  latter  for  free  negro 
vagrants. 


$ 


Document,  No.  9. 


[Session 


The  bill  herewith  reported,  embraces  both  populations: 

4.  “  A  bill  to  punish  seditious  language,  insurrections 
and  rebellions  in  the  State.” 

In  regard  to  this  bill,  the  substance  of  it  has  long  existed 
in  the  State,  under  several  provisions  to  he  found  in  the 
Revised  Code  and  elsewhere.  The  bill  now  ottered  is  in¬ 
tended  as  a  substitute  for  all  provisions  upon  the  same 
-subject. 

5.  “  A  bill  to  secure  to  agricultural  laborers  their  pay 
in  kind.” 

The  object  of  ibis  bill  is  to  encourage  the  field  laborer, 
by  securing  to  him  the  fruits  of  his  toil.  Every  legitimate 
means  should  be  employed  to  stimulate  industry,  and  the 
enjoyment  of  its  fruits  has  ever  been  found  the  strongest 
..incentive  to  produce  the  desired  effect. 

.6.  “A  bill  to  prevent  enticing  servants  from  fulfilling 
fheir  contracts,  or  harboring  them.” 

This  bill  is  a  just  companion  with  the  preceding  one. 
Whi  e  it  is  the  duty  of  the  law-giver  to  secure  to  the  la¬ 
borer  the  promised  rewards  of  his  labor  and  toil,  it  is 
equally  just  to  require  him  to  comply  with  his  deliberate 
and  lawful  contracts  ;  especially  when  his  employer  surren¬ 
ders  to  him,  in  the  outset,  the  use  of  valuable  lands  which 
may  prove  to  be  worthless  to  the  owner,  if  the  laborer  be 
not  held  to  his  contract.  The  inculcation  of  a  strict  ob¬ 
servance  of  contracts  is  equally  the  parent  and  offspring 
of  virtuous  industry.  And  that  man  is  no  less  a  vicious 
member  of  society,  who  persuades  and  encourages  another 
to  be  faithless  to  his  word,  than  he  who  wilfully  violates 
it.  Both  should  suffer  the  sharp  reproof  of  the  law. 

7.  “  A  bill  more  effectually  to  secure  the  maintenance 
©f  bastard  children,  and  the  payment  ef  fines  and  costs  on 
conviction  in  criminal  cases.” 

The  purpose  of  this  bill  is  to  relieve  ihe  County  Treas*' 


1865-  66.] 


Document,  No.  9. 


9 

mries ;  first ,  from  the  burden  of  supporting  bastard  chil¬ 
dren,  which  are  likely  to  gieatly  increase  in  number,  ;n  the 
midft  of  a  demoralized  population. 

It  is  naturally  j ost  that  the  father  should  support  his 
offspring,  whether  born  in  or  out  of  wedlock.  No  one,  if 
able  to  work,  ought  to  be  allowed  to  cast  his  spurious 
progeny  on  the  chaiity  off  the  industrious  poor,  whose  toil 
is  stretched  to  its  utmost  extent  in  supporting  the  public 
charges  and  their  own  virtuous  families. 

Secondly ,  From  the  burden  of  maintaining,  at  heavy 
expense,  the  judicial  tribunals  of  the  land  established  for 
the  preservation  of  the  public  peace  against  the  turbu¬ 
lence  and  violence  of  those  who,  having  been  the  principal  • 
instrument  of  its  breaches,  seek,  when  brought  to  justice, 
to  evade  by  an  idle  life,  the  payment  of  the  costs  of  sup¬ 
pressing  their  own  disorders. 

As  yet,  no  steps  have  been  taken  by  that  authority, 
which  claims  exclusive  jurisdiction,  both  civilly  and  crim¬ 
inally,  over  all  matters  that  concern  the  freed  men,  to  en¬ 
courage  or  enforce  the  marriage  of  such  as,  while  slaves, 
were  long  living  together  willingly,  as  man  and  wife.  By 
the  laws  of  this  State  the  husbands  and  wives,  popularly 
eo  called,  of  a  population  of  300, 000  human  beings,  are 
lewdly  and  laciviouely  cohabiting  together,  without  any 
other  link  of  connection  than  their  own  tree  will.  They 
may  part  when  they  choose,  and  select  new  partners  for  a 
day  or  a  month.  Among  the  whites  such  cases  are  indict¬ 
able.  If,  after  the  courts  shall  assume  their  criminal  ju¬ 
risdiction,  the  colored  people  shall  still  be  allowel  to  con¬ 
tinue  in  the  practice  of  such  unlawful  connections,  with¬ 
out  reproof  or  punishment,  they  will  be  in  a  more  demor¬ 
alized  condition,  in  respect  to  that  relation,  which  among 
all  civilized  human  beings,  is  deemed  so  sacred,  than  were 
free  persons  of  color,  or  even  slaves,  before  the  late  epoch 
•of  emancipation.  The  former  were  not  allowed  to  co.hah* 


10 


Dooument,  No  .  9, 


[Sessions 


it  without  marriage,  duly  celebiated  ;  and  the  latter  wrere 
much  restrained  from  such  licentious  co-habitation,  by  the 
care  and  prudence  of  their  masters. 

If  the  Freedmen’s  Bureau  will  neither  turn  over  to  the 
civil  authorities  for  correction,  this  species  of  crime,  nor 
take  efficient  means,  itself,  for  its  correction,  it  will  be 
impossible  to  elevate  the  lace  by  any  legislative  meansyet 
practiced  or  devised.  No  race  of  mankind  can  be  expect- 
ed  to  become  exalted  in  the  scale  of  humanity,  whose 
sexes,  without  any  binding  obligation,  cohabit  promicious- 
]y  together.  Among  such  a  people,  chastity  can  have  no 
name  or  place;,  and:  the  peiformance  of  parental  duties, 
no  encouragement  or  sanction. 

It  is  much  hoped  that  the  Freedmen’s  Bureau  will  take 
the  subject  into  serious  consideration. 

8.  and  lastly,  “  A  bill  to  establish  work-houses  or  houses 
of  correction  in  the  several  counties  of  the  State.” 

In  the  opinion  of  the  Committee,  this  institution  has  been 
long  since  demanded,  and  now  more  than  at  any  time  here¬ 
tofore.  Though  its  cost,  in  the  present  embarrassed  pecu¬ 
niary  condition  of  the  country,  may  be  somewhat  burden¬ 
some,  there  is  little  doubt  that,  if  managed  with  economy 
and  care,  it  will  soon  prove  a  great  relief  to  the  honest 
industry  of  the  country.  The  dread  of  involuntary  labor 
is  much  more  effectual  to  suppress  misdemeanors  and  idle¬ 
ness  than  a  few  days  of  imprisonment,  with  a  discharge  of 
fines  and  costs  under  the  insolvent  debtor’s  law. 

Without  such  a  house  the  present  jails  will  be  unequal 
to  contain  those  who  will  be  committed  to  prison.  Their 
proper  enlargement  for  the  reception  of  both  species  of 
population,  and  the  different  sexes  of  each  population,  will 
cost,  at  once,  as  much  as  a  work  house  and  farm  on  a  small 
scale,  which  may  be  enlarged  as  occasion  may  require. 

The  Committee  have  left  it  discretionary  with  the  Jus¬ 
tices  of  the  Peace,  whether  they  will  establish  such  & 


/ 


2865-’66.] 


Document  No.  9. 


m 

house ;  because,  in  some  counties  it  may  be  little  needed, 
and  iu  others  very  greatly  ;  and  because,  also,  some  coun¬ 
ties  are  more  able  to  establish  them  at  once,  than  others 
are.  If  even  one  county  shall  establish  such  an  institu¬ 
tion,  self  defence  will  soon  render  it  necessary  for  all  tho- 
adjacent  counties  to  follow  the  example  ;  and  a  few  years 
on  y,  will  be  requisite  to  extend  the  institution  over  the 
State. 

If  this,  or  some  similar  policy  should  not  be  inaugura¬ 
ted,  it  is  not  difficult  to  foresee  that  this  State  may  become,, 
in  the  process  of  time,  the  land  of  immigration  from  all 
parts  of  the  Union,  ot  the  demoralized  freedman  and  the 
dissolute  white  man. 

The  Committee  are  aware  that  the  great  and  radical 
changes  occasioned  by  emancipation,  in  the  fixed  habits* 
and  custom  of  the  people,,  cannot  be  truly  estimated  at 
once  ;  and  therefore,  they  forbear,  as  much  as  possible,  to 
speculate  by  legislative 'anticipation,  for  such  changes  as 
may  even  probably  become  necessary  in  the  course  of  time. 
They  deem  it  the  more  prudent  course  to  proceed  now  by 
new  laws,  only  so  far  as  the  way  appears  to  be  clear.  They 
prefer  to  let  the  common  law  apply  itsilexible  rules  for  hu¬ 
man  conduct  to  the  new  state  of  things,  rather  than  frame- 
lor  it  rigid,  and  perhaps  misconceived  legislation. 

The  General  Assemby  will  perceive  that  we  have  omit¬ 
ted  all  such  punishments  as  the  involuntary  hiring  out  of 
persons  of  color,  and  also,  of  whipping  them,  except  m 
eases  where  white  persons  are  thus  punished. 

Public  whipping  is  a  species  of  punishment  which  ought* 
rarely  to  be  inflicted  on  any  one  whom  it  is  the  purpose 
of  the  law  to  reclaim  from  crime.  The  culprit  thus  pun¬ 
ished  becomes  utterly  degraded  in  public  esteem  ;  and  it 
would  he  wonderful  if  he  did  not  become  so  in  his  own.. 
K  freeman  thus  degraded,  loses  all  incentive  to  virtue;  and* 


12  Document  No.  9.  [Session 

so  far  a3  his  example  can  extend  as  a  parent  or  othe  wise, 
lie  inculcates  all  his  vices  in  those  around  him. 

It  may  he  said,  and  with  perfect  truth,  that  there  are 
comparatively  few  of  the  slaves  lately  freed,  who  are  lion- 
e£t ;  but  this  vice  now  so  prevalent  among  them,  may  be 
traced  to  other  and  more  probable  causes  than  any  natural 
depravity  peculiar  to  the  negro  race,  which,  by  some  phys¬ 
iologists,  are  declared  to  be  naturally  destitute  of  moral 
principles,  in  a  gi  eater  degree  than  any  other  people  yet 
knowm.  The  Committee  have  not  regulated  their  code  by 
this  doctrine.  And  if  it  vrere  true,  there  is  but  the  greater 
necessity  for  correcting  the  natural  obliguity  by  proper 
civil  institutions  wisely  administered.  That  the  race  is 
not  beyond  the  reach  of  a  proper  moral  training,  is  evident 
from  the  many  examples  among  them  of  sobriety,  indus¬ 
try  and  honesty.  If  it  owed  its  depravity  to  the  vicious 
nature  peculiar  to  the  race,  wre  ought  to  be  able,  by  this 
time,  to  trace  some  steps  of  improvement  in  the  mixture 
of  its  blood  with  that  of  other  races  of  .men. 

The  Committee  have  not  discovered,  nor  has  it  been 
maintained,  that  the  mixed  blooded  slave  has  been  eleva¬ 
ted  in  the  moral  virtues  of  the  white  race,  as  he  advanced 
toward  it  in  color.  It  may  not  be  amiss  to  remark  that 
the  punishment  by  hiring,  is  rather  of  modern  date.  The 
first  enactment  to  this  effect  was  in  1831,  and  its  constitu¬ 
tionality  was  seriously  questioned  by  eminent  lawyers, 
though  settled  by  an  able  court. 

Your  honorable  body  will  perceive  also,  that  we  recom¬ 
mend,  that  the 'Courts  should  be  fully  opened  to  the  negro 
race,  for  protecting  their  persons  and  property,  and  all  the 
i rights  of  freemen,  by  being  heard  as  witnesses,  whenever 
these  rights  are  in  controversy. 

The  enactment  recommended,  allows  their  evidence  in 
civil  cases  only  where  the  rights  of  person,  or  property  of 
^persons  of  color  would  be  precluded  by  the  judgments  or 


186S — ’  66.] 


Document  No.  9. 


a 

decrees  made  in  those  cases.  And  in  criminal  cases,  only 
where  the  violence,  fraud,  or  injury  charged  to  have  been 
done  by,  or  on  them,  is  put  directly  in  issue. 

If  the  testimony  is  to  be  admitted  at  all,  it  ought  to  be 
extended  to  such  ca^es.  The  effect  of  thus  limiting;  it  will 
not  deny  them  any  advantages,  but  on  the  contrary,  will 
fecure  to  them  the  most  perfect  protection  that  human 
evidence  can  afford.  Beyond  the  accomplishment  of  this 
object  we  have  not  felt  ourselves  authorized  to  go.  The 
result  of  allowing  it  to  this  extent  will  be,  that  when  col¬ 
ored  persons  are  parties,  they  may  call  to  the  witness  stand 
the  whole  population  of  the  land,  not  rendered  incompe¬ 
tent  by  want  of  understanding,  interest,  or  religious  unbe¬ 
lief  ;  while  in  cases  where  white  persons  alone  are  parties* 
white  persons  only  will  be  competent  witnesses. 

The  Committee  will  proceed  to  give  some  of  the  reasons 
which  have  induced  them  to  recommend  the  reception  of 
the  evidence  of  negroes,  as  provided  in  section  II. 

First.  The  'present  helpless  and  unprotected,  condition  of  the 
race  demands  it.  Their  condition  of  personal  security  is 
greatly  changed.  Prior  to  emancipation  they  were  grouped 
en  farms  which  they  seldom  left,  and  were  overlooked  by 
their  masters  or  overseers,  surrounded  by  families  of  white 
children. 

They  were  not  only  watched  by  the  whites  to  preserve 
the  discipline  necessary  for  servitude,  and  to  prevent  spoli¬ 
ations,  but  were  cared  for  and  protected  as  property.  It 
was  the  slaveholder’s  interest  to  prevent,  and,  when  com¬ 
mitted,  to  punish  any  injuries  done  to  the  persons  of  their 
slaves.  The  inlerest  of  one  slaveholder  was  the  interest  of 
all ;  so  that  their  security  was  guaranteed  by  the  common 
interest  of  the  wealthiest  and  most  powerful  men  in  the 
country,  and  of  course,  of  all  their  kindred  and  adherents, 
among  whom,  generally,  were  their  poorer  white  neighbors.. 
Thus  the  person  of  the  slave  (without  reckoning  the  feelings 


14 


Dogument  No.  9, 


[Session 


of  humanity  which  have  generally  characterized  the  slave¬ 
holders  of  this  State)  became  the  subject  of  general  protec¬ 
tion  by  every  class  of  white  men  ;  and  any  outrage  on  his 
person  a  general,  cause  for  common  vindication.  With  this 
shield  of  security,  the  white  aggressor  was  checked  in  his 
violence  ;  and  if  not,  his  detection  was  almost  sure.  These 
sources  of  personal  security  are  all  removed  by  emancipa¬ 
tion,  and,  without  the  capacity  to  bear  evidence,  he  stands 
in  numerous  cases  utterly  defenceless,  except  by  opposing 
force  to  force  against  every  species  of  outrage  offered  to 
himself  or  to  his  family ;  whether  in  his  presence  alone,  or 
under  the  eye  of  other  colored  persons.  If  he  should  sub¬ 
mit  to  the  violence,  and  suffer  the  most  grievous  wrongs, 
there  is  no  one  who  can  be  heard  in  his  behalf ;  and  he  could 
•expect,  from  his  submission,  nothing  less  than  a  repetition 
of  his  unredressed  wrongs. 

If  he  should  oppose  force  to  force,  in  the  iustest  cause, 
whatever  might  be  the  result,  his  mouth  and  the  mouths  of 
all  colored  witnesses  would  be  closed. 

It  is  a  truth  not  less  obvious  than  established  by  all  ex¬ 
perience,  that  breaches  of  the  peace  always  decrease  in  pro¬ 
portion  to  the  facility  and  impartiality  with  which  the  vio¬ 
lator  is  brought  to  justice.  Citizens  will  not  readily  avenge 
themselves  when  the  sword  of  the  law  is  at  hand  to  do  it 
for  them.  But  when  the  law  is  powerless,  from  whatever 
cause,  the  hand  of  private  violence  will  be  sure  to  come  to 
the  aid  of  self-defence.  It  is,  therefore,  clear  that  by  pro¬ 
tecting  the  person  of  the  negro,  we  shall  most  certainly 
protect  the  person  of  the  white  man.  If  the  former  may  be 
outraged  in  his  own  domicil,  or  in  secret  places,  or  along 
the  highway  in  open  day,  with  impunity,  because  he  may 
be  incompetent  to  testify  to  the  wrong,  he  will  turn  from  the 
door  ol  the  courthouse  and  seek  his  redress  elsewhere,  and 
in  a  way  too  that  will  likewise  shut  the  mouth  of  him  who 
may  witness  the  act.  Let  no  one  suppose  such  a  result  im« 


3  8  6o— ’  66.] 


Document  No.  9. 


15 


probable,  if  the  great  and  just  law  giver  of  the  Jews  has 
himself  set  the  example  to  an  enslaved  people. 

Secondly.  The  admission  of  such  evidence  is  necessary  to 
secure  the  colored  people  in  their  rights  of  property. 

While  in  slavery  they  had  no  property.  What  was  set 
apart  for  their  use  belonged  to  their  master,  and  was  under 
his  protection.  In  their  new  state  they  enter  on  the  broad 
ground  of  citizenship,  and  become  actors  in  all  the  depart¬ 
ments  of  social  life.  They  are  allowed  to  trade  with  the 
white  man  in  every  article  of  property  ;  to  possess  and  cul¬ 
tivate  lands,  and,  by  all  wise  means,  should  be  encouraged 
to  habits  of  industry  and  a  desire  for  honest  accpiisition. 

The  protection  of  a  man’s  honest  gains  should  ever  be, 
after  the  protection  of  his  person,  the  next  great  policy  of  a 
wise  commonwealth.  If  the  property  which  a  negro  shall 
own,  his  cattle,  his  money,  may  all  be  carried  off,  yea,  his 
very  house  robbed  of  its  furniture,  and  his  person  of  his 
valuables  by  abandoned  white  men,  and  he  shall  be  unable 
to  bring  the  robbers  to  justice  because  the  witnesses  are 
colored,  can  the  race  feel  any  ardent  disposition  to  labor  for 
themselves?  On  the  contrary,  will  they  not  feel  doubly 
tempted  by  such  want  oi  security  for  their  own  property,  to 
become  depredators  themselves  especially,  when  they  re¬ 
flect  that  it  is  the  white  man’s  policy,  which  thus  exposes 
them  to  licentious  white  men  ? 

But,  besides  such  glaring  cases  of  public  wrongs  which 
would  go  unredressed  bv  excluding  their  evidence,  there 
are  many  of  a  more  private  n  ature,  which  depraved  white 
men  would  perpetrate  on  them  or  procure  to  be  done  by 
their  negro  associates,  as  their  instruments.  Already  the 
wicked  white  man  and  corrupt  dependent  negro  have  banded 
together  in  lawless  thefts  and  frauds  on  industrious  and 
peaceful  citizens,  both  white  and  black  ;  and  the  white  as¬ 
sociate,  if  negro  evidence  shall  be  excluded,  will  stand 
secure  in  his  villainy  behind  his  colored  friend. 


16 


Document,  No.  7. 


("Session 


The  calamity  to  public  virrue  and  private  rights  woibd 
he  incalculable,  if  those  who  were  injured  couhl  not  testify 
against  the  perpetrator  of  the  crime.  How  shocked  would 
every  citizen  of  North-Carolina  feel,  ifthe  Legislature  should 
enact  that  no  person  assaulted  and  beaten,  no  one  whose 
property  was  stolen,  no  one  robbed,  and  no  one  ravished, 
should  bear  evidence  of  the  crime?  The  exclusion  of  negro 
evidence  places  that  race  in  just  such  a  condition. 

The  committee  are  of  opinion  that  the  protection  of  person 
and  property  imperiously  demands  that  the  evidence  of 
colored  persons  be  admitted  for  that  purpose,  unless  it  should 
be  excluded  upon  some  ground  ^f  public  policy  still  higher 
than  such  as  favors  its  introduction.  We  have  heard  of  but 
one  that  is  plausible,  and  that  is  the  general  falsity  of  such 
evidence.  N  o  one  pretends  that  it  is  universally  false.  It  is 
urged,  however,  that,  for  the  greater  part,  the  evidence  is 
not  reliable,  and,  if  universally  believed,  would  produce  far' 
more  wrong  than  right. 

-  We  are  fully  aware  of  a  lamentable  prevalence  ol  this  vice 
among  the  race.  It  is  a  natural  ofispring  of  their  recent 
slavery  and  degradation. 

Forced  to  an  involuntary  servitude,  and  required  to  do 
many  things  against  their  will,  without  any  apparent  profit 
to  themselves,  it  was  natural  for  them  to  disobey,  if  they 
found  temporary  ease  in  disobedience;  and,  to  avoid  cor¬ 
rection,  it  was  equally  natural  for  them  to  endeavor  to  escape' 
it,  by  falsehood.  The  vice  of  lying  is,  and  ever  has  been, 
common  to  all  people  in  slavery.  Universal  and  unvary¬ 
ing  truth  is  the  highest  and  purest  of  all  virtues;  and  if  the 
most  veracious  persons  only  were  competent  witnesses,  there 
would  be  many  cases  of  the  highest  interest  to  the  public 
without  a  single  witness.  Such  a  rule,  however,  has  never 
marked  tliepolicy  of  justice  in  its  investigation  of  facts. 

It  has  been  said  that  in  a  by-gone  age,  the  rules  of  evi¬ 
dence  with  us  were  framed  rather  to  exclude  falsehood  than; 


Docuh&.mt  yo  % 


ms 


to  admit  truth  ;  but  even  when  these  rules  were  administer¬ 
ed  in  this  spirit,  all  persons  above  seven  years  old,  of  suffi¬ 
cient  understanding,  not  religiously  insensible  to  the  obli¬ 
gations  of  an  oath,  nor  parties  directly  interested  in  the 
cause,  were  competent  witnesses,  unless  they  had  been  ren¬ 
dered  infamous  by  conviction  of  some  infamous  crime,  and 
judgment  rendered  thereon.  These  were  English  rules  of 
the  common  law  ;  and,  so  long  as  they  prevailed,  there  was 
no  nation  on  the  earth  whose  inhabitants  were  excluded  us 
witnesses  from  English  courts,  it  mattered  not  what  was 
their  color,  clime  or  religion.  It  is  probable  that  at  a  very 
early  period,  after  the  introduction  of  African  slavery  in 
this  State,  the  slave  was  forbidden  to  testify  against  a  white 
person,  and,  it  is  probable  also  that  the  exclusion  was  soon 
extended  [to  free  persons  of  color.  Slaves  were  not  al¬ 
lowed  to  bear  testimony  against  free  persons  of  color  until 
1821. 

The  policy  of  excluding  such  testimony  was  founded  on 
two  considerations.  First,  The  entire  and  absolute  depen¬ 
dence  of  a  slave  on  his  master,  and  their  social  relation 
which  rendered  him  unfit  to  bear  witness  for  or  against  his 
master ;  or  for  or  against  any  person  to  whom  his  master 
extended  his  favor  or  dislike.  Besides  this,  the  settled 
policy  was  to  humble  the  slave  and  extinguish  in  him  the 
pride  of  independence.  This  latter  policy  was  extended  in 
1821,  to  the  free  negro,  who,  it  was  alleged,  was  greatly  cor¬ 
rupting  the  slave  by  claiming  superior  privileges  over  him. 

Emancipation  having  destroyed  the  distinction,  all  legis¬ 
lation  concerning  the  colored  race,  must  he  the  same. 

The  rules  regulating  the  admissibility  of  the  evidence  of 
white  persons,  with  a  few  exceptions,  remain  with  us  as  they 
were  a  century  since.  But  ail  at  once  the  slave  has  disap¬ 
peared,  and  upwards  of  300,000  free  persons  of  color  are 
added  to  the  population  ;  these,  with  those  before  existing, 
constitute  one-third  of  our  entire  people.  Shall  they  he  ad- 


Document  No.  9. 


|  Session: 


IS 


mitted  to  the  witness  stand?  If  it  ever  was,  it  is  certainly 
*  not  now,  our  policy  to  degrade  them.  On  the  contrary,  our 
true  policy  is  to  elevate  them  in  every  way  consistent  with 
the  safety  and  good  government  of  tlie  community.  They 
must  be  educated  out  of  their  ignorance,  and  reformed  out 
of  their  vicious  habits. 


If  the  admission  of  their  evidence  will  not  seriously  err 
danger  the  administration  of  our  laws,  our  manifest  policy 
is  to  allow  it,  for  nothing.,  In  our  opinion,  tends  more  to 
inculcate  a  regard  for  truth  than  the  almost  unavoidable 
detection  of  falsehood,  which  occurs  injudicial  investigations 
before  a  jury,  where  the  parties  and  witnesses  are  known, 
ami  their  maimer  and  conduct  are  scrutinized  in  the  ordeal 


of  trial. 


If  it  he  true  that  either  the  negro  race,  or  the  negro  in 
our  midst,  civilized  as  lie  is  beyond  his  native  condition,  be 
so  mendacious  that  he  cannot  be  safely  heard  in  our  court 
of  justice,  it  seems  to  us  that  it  is  one  of  your  highest  du¬ 
ties  to  exclude  them  as  witnesses  in  all  cases  whatsoever, 
as  well  those  in  which  they  are  the  sole  parties,  as  those 
wherein  one  of  the  parties  is  a  white  man;  and,  above  all 
things,  not  to  allow  persons  of  color  to  be  convicted  of  cap¬ 
ital  felonies  and  deprived  of  life,  on  such  unreliable  evidence. 
If,  to  this  suggestion,  it  may  be  truly  replied,  that  he  can 
be  trusted  whea  his  own  color  is  on  trial,  then  it  follows 
that  lie  yet  loves  truth  better  than  falsehood,  unless  he  is 
seduced  by  his  prejudices  against  the  white  man.  Now,  if 
this  be  so,  this  general  characteristic  of  tlie  race  will  soon 
develops  itself,  and  thenceforth  receive  its  just  estimate  at 
the  hands  of  a  white  judge  and  a  white  jury.  It  is  just  to 
truth,  however,  for  m  to  admit  that  neither  during  the  won¬ 
derful  and  enduring  conflict  of  arms,  popularly  announced, 
in  their  very  midst,  to  be  in  behalf  of  their  freedom,  they 
did  not  exhibit,  nor  since  its  termination*,  have  they  ex- 


1S05-’6'G.  : 


Document,  No.  b. 


lb 

hibited  any  decided  marks  of  prejudice  against  their  late 
masters. 

It  must  be  conceded  by  the  opponents  of  such  evidence, 
that  if  strong  prejudices  be  sufficient  to  exclude  the 
testimony  ot  witnesses,  all  experience  teaches  that  public 
prosecutors,  near  kindred,  and  personal  enemies  ought 
to  be  set  aside  as  incompetent ;  and,  if  general  corruption 
be  also  sufficient  cause  for  exclusion,  the  man,  whose  char¬ 
acter  for  truth  on  oath,  is  proved  by  all  Ills  acquaintances 
to  be  bad,  ought  no  more  to  be  beard  in  the  ascertainment 
of  facts,  than  a  negro.  Yet  in  all  these  cases  the  witness  is 
heard,  subject  to  so  many  “  grains  of  allowance”  on  ac¬ 
count  of  his  established  and  admitted  infirmity  as  a  jury 
may  judge  to  be  the  proper  measure.  It  is  settled 
by  our  highest  judicial  tribunal,  that  the  testimony  of  a 
witness  who  commits  a  perjury,  apparent  to  the  jury  in  the 
very  case  in  which  he  is  examined,  must,  nevertheless  be 
weighed  by  the  jury  for  what  it  is  worth. 

By  the  laws  of  all  civilized  Europe,  regulating  the  com¬ 
petency  of  witnesses,  none  are  excluded  by  reason  of  char¬ 
acter,  race,  color,  or  religion.  We,  ourselves,  admit  the 
semibarbarian  of  every  continent  and  island  :  of  every  na¬ 
tion  and  tongue ;  of  every  religion,  Christian,  heathan  and 
pagan  ;  and  of  every  color,  and  race,  unless  lie  may  fall  un¬ 
der  the  ethnological  varieties  of  the  human  species,  denomi¬ 
nated  Negroes  and  7 notions. 

We  are  not  prepared  to  admit,  nor  indeed  do  we  believe 
that  the  colored  man  in  North-Carolina  is  entitled  to  less 
credit  on  his  Christian  oath,  than  the  colored  Musselman, 
or  heathen  of  Asia  <  r  Egypt,  or  of  other  parts  of  Africa,  is 
when  sworn  on  Ids  Koran  or  other  symbols  of  religious  rev¬ 
erence.  And  when  we  consider  the  many  thousands  in  the 
State,  who  are  in  full  fellowship  as  Christians,  though  we 
are  quite  sensible  of  the  general  demoralizrtion  which  per" 


Document  No.  S». 


['Sessioa 


/ 


2d 

vades  them  as  a  class,  we  feel  little  dread  for  the  conse¬ 
quences  which  may  attend  the  admissibility  of  their  evidence 
as  reported. 

In  offering  our  reasons  for  allowing  the  evidence,  we  have 
conceded  the  general  demoralization  of  the  colored  popula¬ 
tion  :  but  we  should  do  great  injustice  to  many  of  them, 
if  we  should  close  this  report,  without  excepting  from  the 
stigma  hundreds,  who,  throughout  their  lives,  have  con¬ 
ducted  themselves  in  a  manner  altogether  becoming  the 
best  of  citizens,  and  deserving  the  very  highest  praise. 
These  are  lights,  indeed,  to  all  others  ;  and  the  considera¬ 
tion  of  respect  in  which  they  are  held,  ought  to  stimulate 
and  encourage  others  of  their  race  to  practice  the  virtues  of 
honesty  and  truth,  which  have  served  to  distinguish  the 
few. 

The  committee  hitherto  have  argued  that,  if  the  proposed 
evidence  be  admitted,  subject  to  the  rules  long  established 
among  us,  and  derived  from  our  English  ancestors,  the  ad¬ 
ministration  of  justice  will  have  little  to  apprehend  from 
the  depravity  or  prejudice  of  the  witness.  In  proof  of  tliis % 
they  beg  leave  to  invoke  the  attention  of  your  honorable 
body  in  the  recent  experiments  on  those  rules,  made  in 
England  and  in  many  of  the  United  States.  They  will 
specially  notice  only  those  made  in  England  within  the  last 
twenty -two  years. 

Up  to  the  year  1845,  like  rules,  for  the  most  part,  pre¬ 
vailed  in  this  State  and  in  England.  In  that  year  a  great 
innovation  was  made  by  statute  6  &  7  Viet,  removing  many 
disqualifications,  because  of  interest  in  the  witness.  So 
beneficial  to  the  ascertainment  of  truth  (contrary  to  all  pre¬ 
vious  theory)  did  this  experiment  prove,  that,  in  1852,  the 
Parliament  (St.  15  &  16  Viet.)  took  another  and  a  very 
long  step  in  the  same  direction,  and  allowed  each  party  not 
only  to  put  the  other,  but  even  himself,  on  the  witness 


I 


iStJS-'&L]  OoCt.UCNT  N*».  *  til. 

stand  against  his  adversary.  A  proposition  of  this  kind, 
made  forty  years  ago  in  that,  country,  would  have  been  re¬ 
garded  as  the  vision  of  a  disordered  intellect ;  yet  the  daily 
practice  under  this  law,  has  so  illustrated  its  benefits  that 
it  is  regarded  as  the  most  successful  means  towards  perfect¬ 
ing  the  administration  of  ju dice  in  that  country  ;  a  country 
which  has  no  superior,  if  indeed,  any  equal  on  the  globe,  in 
ever  exhibiting  the  moat  intelligent  and  careful  solicitude  to 
provide  for  the  rights  of  person  and  property  of  every  sub¬ 
ject  within  its  vast  domains. 

Respectfully  submitted, 

B.  F.  MOORE, 

W.  S.  MASON, 

R.  S.  DONNELL. 


\ 


' 


■ 


v 


' 


. 


' 


. 

- 

' 


* 


